While flagging violation of statutory provisions by the Municipal Councils, the Rajasthan High Court has observed that State cannot be a passive observer of this and should form mechanism to monitor it.

The Court was considering a Writ-Petition against an order passed by the Respondents in exercise of the powers contained under Section 39(6) of the Rajasthan Municipalities Act, 2009 by which the Petitioner, elected Chairperson, Municipal Council, Dausa was placed under suspension.

The single bench of Justice Anoop Kumar Dhand observed, "The State Government cannot remain a passive observer or justify its inaction by claiming that responsibility lies solely with the concerned Municipal Council/Board and such meetings are not monitored or supervised by the State-level Administrative Department. Any violation of statutory provisions amounts to a violation of the law, which cannot be permitted. If the State lacks a mechanism to monitor and supervise the functioning of its Municipal Council/Board it must establish one. A High-Powered Committee should be constituted at the Division level to oversee the activities of each Municipal Council/Board lying within its jurisdiction and ensure compliance of the mandatory legal provisions."

The Petitioner was represented by Senior Advocate R.B. Mathur while the Respondent was represented by Additional Advocate General G.S.Gill.

Facts of the Case

Counsel for the Petitioner submitted that the Petitioner was elected as Chairperson, Municipal Council, Dausa and a Show Cause Notice along with charge-sheet was served upon her with regard to certain irregularities found in her functioning and five charges were levelled.

He submitted that none of the charges, levelled against the Petitioner, refer to any functional irregularities or financial loss caused by the Petitioner to the Respondents. It was further submitted that the charges are not such, which require suspension of a public representative. The Counsel averred that the preliminary enquiry report was not taken into account and the Petitioner was placed under suspension. Noting that the meetings could not be conducted due to imposition of Model Code of Conduct of elections, he submitted that except the Petitioner, action was not taken against any of the Chairperson of the concerned Boards/ Municipal Councils for not conducting meetings. It was therefore contended that the exercise against the Petitioner was done with malafide intentions and ulterior motives. The Counsel urged the Court that the Petitioner is ready and willing to participate in the judicial proceedings being conducted against her but her suspension is not warranted for such charges, hence, interference of this Court is warranted.

Contrarily, Counsel for the Respondent submitted that the Petitioner acted in a disgraceful manner by misusing her power and position as Chairperson of the Municipal Council as lakhs and crores of rupees were utilized by the Municipal Council in construction of a community hall, funeral ground, etc. whereon the name plates (plaque) of her father-in-law was affixed by the Petitioner. It was submitted that when the enquiry was conducted against the Petitioner, it was found that crores of rupees were misused by her and even pattas were issued in her tenure in the name of her family members and various files were found to be misplaced. The Counsel submitted that though, as per the provisions contained under Section 51 of the Act of 2009, the Chairperson/Municipal Council/Board was required to conduct minimum six consecutive meetings, in a particular year but there is no mechanism available with the State to manage the same and it is the business of the concerned Municipal Council/ Board to comply with the provisions of law, but whenever complaints are received in this regard, actions are taken against the concerned personnel.

Reasoning By Court

The Court at the outset analyzed Section 39 of the Act of 2009 stating that it indicates that a member of Municipality may be removed if he has absented himself/herself for more than three consecutive general meetings, without leave of Municipality or he/she has been found guilty of any misconduct, in discharge of his/her duties or has been guilty of any disgraceful conduct. It was further stated that a judicial enquiry can be conducted against him/her and such person can be placed under suspension against whom proceedings have been initiated under this Section, until conclusion of the enquiry and passing of the final order.

The Court stated that it will not go into the correctness of the charges and the reply submitted by the Petitioner, since it was the subject matter of judicial enquiry hence the Court refrains from commenting on it. It was clarified that the Enquiry Officer shall not be influenced by the observations and expression of opinion passed by the Court that may prejudice the pending enquiry and on its completion will be at liberty to draw his conclusions on the basis of material placed before him.

Noting that office held by the elected representative of the public cannot be equated with that of the Government employees since these offices are held by the incumbent for a fixed period of time, the court stressed that it would not shirk its responsibility to intervene in the matter as and when a glaring case of the kind is brought before it while insisting that power even in such like cases should be used very sparingly and that too with utmost care and caution.

The Court rejected the arguments of the Counsel for the Petitioner and observed, "This Court feels astonished that out of total 282 Municipal Councils/Boards, in several Municipal Councils/Boards, regular six meetings, as per Section 51 of the Act of 2009 have not been conducted for last so many years and no action has been taken against the defaulters."

It insisted that the State Government better not be a passive observer and search for mechanism to monitor the activities of the Municipal Council.

Cause Title: Mamta Choudhary vs. State of Rajasthan

Appearances:

Petitioner- Senior Advocate R.B. Mathur, Advocate Falak Mathur, Advocate Nikhil Simlot

Respondent- Additional Advocate General G.S.Gill, S.P.S. Rajawat

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Rajasthan High CourtJustice Anoop Kumar Dhand

Sheetal Joon